The jury trial is a constitutionally protected right that, in the American criminal justice system, has been largely displaced by plea bargaining. Across four episodes of The Bob Zadek Show, guests and host Bob Zadek examined how prosecutorial leverage, excessive sentencing threats, and the mechanics of plea deals have combined to make the jury trial rare—by some measures, vanishingly so—and debated whether this constitutes a constitutional crisis or merely an efficient, if troubling, feature of modern criminal procedure.
The Disappearance of the Jury Trial
Bob Zadek opened the topic by asserting that the right to a trial by jury of one’s peers has been cherished since perhaps the Magna Carta in 1215, and that jury trials in criminal cases have virtually disappeared. He stated that about 97% of all convictions are done without a jury trial, and asked whether that is healthy or simply efficient rachel_barkow_on_fixing_the_fundamentals_of_criminal_justice.
In a later episode, Zadek returned to the theme, noting the almost total disappearance of criminal jury trials in America and calling it a serious problem The Libertarian Dream Team - Ilya Somin (2022). The topic received its fullest treatment in a dedicated episode with Professor Carissa Hessick, who provided statistics: averaging all convictions in both federal and state court, somewhere around 97 or 98% are the result of a guilty plea. She noted that the remaining 2% of convictions resulting from trials are not evenly spaced—in Rhode Island, federal convictions in 2021 saw zero trials in the entire state. Hessick quoted Justice Kennedy’s observation that plea bargaining is not adjacent to the criminal justice system but in a very real sense is the criminal justice system What happened to the right to a trial by jury? (2022).
Zadek characterized the situation as one in which a constitutionally protected right has been written out of the country’s jurisprudence, existing only in theory. He challenged listeners to identify another specifically enumerated right in the Bill of Rights that is waived 98% of the time by its holder, listing free speech, religious practice, freedom from unreasonable searches and seizures, and protection against eminent domain as rights not similarly waived. He called jury trial a throwaway right and said that in itself is offensive What happened to the right to a trial by jury? (2022).
Plea Bargaining as Coercion
The central mechanism by which the jury trial has been displaced, according to the guests, is the plea bargain—or, as some prefer to call it, the trial penalty. Rachel Barkow argued that prosecutors negotiating plea bargains hold the threat of very long sentences because of long sentencing guidelines, giving the accused the option of pleading to a much lower incarceration crime or risking a jury trial with a lifetime or close-to-lifetime sentence. She called this almost coercion and said the word “bargain” is misused because the perpetrator has very little going for them rachel_barkow_on_fixing_the_fundamentals_of_criminal_justice.
Barkow preferred the term “trial penalty” over “plea bargain,” describing it as putting a price tag on the ability to exercise a constitutional right to a jury. She said prosecutors threaten people every day in America with sentences as long as life should they go to trial, offering to recommend a sentence of two years if the defendant pleads guilty to a charge carrying a life sentence or a mandatory minimum of 30 years. No one in their right mind could think the prosecutor honestly believes the defendant deserves life or 30 if they are willing to take two, she said; they are using the threat to coerce people and to take the jury out of the process rachel_barkow_on_fixing_the_fundamentals_of_criminal_justice.
In the 2021 episode on the New Civil Liberties Movement, the guest described plea bargains as perhaps the most common venue for conditions, noting that the government will charge a person with a crime, perhaps overcharge them, then offer a lower charge if they settle and avoid the expense of a jury trial. The guest stated that in plea bargains one should get about one-third of the charged sentence, and that around 97% or more of federal charges get settled this way, making it a primary mode of determining sentence and guilt The New Civil Liberties Movement (2021).
Constitutional Conditions and the SEC Gag Order
The 2021 episode raised a distinct constitutional concern: conditions attached to plea bargains that require defendants to waive rights in future proceedings. The guest said that requiring a defendant to give up a jury trial in the current proceeding is perfectly constitutional, but asking them to give up a jury trial in a subsequent proceeding is another matter. Similarly, testifying against oneself in a current proceeding is one thing, but being asked to testify in another proceeding gets more complicated and looks like an attempt to control constitutional rights The New Civil Liberties Movement (2021).
The guest singled out the Securities and Exchange Commission’s practice of adding gag orders to settlements, requiring defendants to promise not to talk about the case. The guest called this grossly unconstitutional, describing it as the use of a plea bargain to silence critics and bar defendants from exposing unconstitutional conduct of the SEC. The guest said some plea bargains are not only unconstitutional but a threat to the constitutional system as a whole, and noted that challenging the SEC’s gag orders is one of the targets of the New Civil Liberties Alliance The New Civil Liberties Movement (2021).
The Right to Vote Analogy
Carissa Hessick offered an analogy to clarify the constitutional problem with plea bargaining. She asked listeners to imagine the government withholding a person’s Social Security check unless they vote for a particular candidate—coercion about how one exercises a right. Then she asked them to imagine being offered a million dollars to vote for that candidate—also bad, but for a different reason. She explained that structural rights like the right to vote and the right to a jury were set up by the people who wrote the Constitution because they wanted a particular type of government run a particular way that was less likely to become tyrannical. Paying people to vote a certain way and giving them sweetheart deals so they do not have juries are of the same ilk, she said, where government bureaucrats do not go to the people to get them to sign off on decisions being made What happened to the right to a trial by jury? (2022).
Hessick also addressed a hypothetical posed by Zadek in which a guilty defendant tricks a prosecutor into a lenient plea. She said defendants are always free to plead guilty and do not need a prosecutor to give them something in return; before plea bargaining was dominant, some people still pleaded guilty because they did it and did not want the hassle of a trial. She noted that prosecutors do not see themselves as losing out on a jury trial when they accept a plea What happened to the right to a trial by jury? (2022).
The Separation of Powers and Democratic Accountability
Zadek framed the plea bargaining phenomenon as a profound contradiction in American governance. He observed that the country has moved toward greater democracy—changing the election of senators in 1913, moving candidate selection from smoke-filled backrooms to primaries, and diminishing the Electoral College—yet plea bargaining takes citizens out of the process of deciding whether another human being should be deprived of liberty. He called this a profound contradiction that gets ignored What happened to the right to a trial by jury? (2022).
Barkow similarly emphasized the jury’s role as the way that ordinary citizens get involved in checking the government in individual cases. She noted that the Framers knew how important this was, including the jury in the original Constitution even before the Bill of Rights, and that it was supposed to be a real protection. Instead, she said, government employees—prosecutors—are taking juries completely out of the process because they make it too expensive, too costly, and too risky for any defendant to exercise that constitutional right. She argued this has happened only because the Supreme Court has not done its job in saying that this is an unconstitutional condition on the exercise of the jury trial right rachel_barkow_on_fixing_the_fundamentals_of_criminal_justice.
Victims and Restorative Justice
A caller named Jacob raised the issue of victims, asking whether there should be a probable cause hearing in all 50 states before any plea agreement is signed. Barkow agreed that the criminal justice system fails victims, noting that most crimes go unreported because millions of victims lack confidence in how the process will play out. For those who do report, she said, it is often the case that they do not want the sentence the government is offering—sometimes because it is too lenient, but sometimes because it is too harsh. She cited research showing that when asked, many victims would prefer restorative justice programs where the person who committed the crime confronts them, apologizes, and works to address the harm, rather than simply being sent to prison. But prosecutors often assume without consulting victims what they want, and restorative justice is not presented as an option rachel_barkow_on_fixing_the_fundamentals_of_criminal_justice.
Across episodes
The topic of jury trial and plea bargaining appears in four episodes spanning 2019 to 2022. In the 2019 episode, Rachel Barkow focused on the coercive nature of plea bargaining and the trial penalty, emphasizing the threat of extreme sentences and the Supreme Court’s failure to address unconstitutional conditions. In the 2021 episode on the New Civil Liberties Movement, the guest shifted emphasis to specific unconstitutional conditions in plea bargains, particularly the SEC’s gag orders, and noted that challenging these is a target of the New Civil Liberties Alliance. In the 2022 episode with Ilya Somin, Zadek mentioned jury reform and the disappearance of criminal jury trials as a topic they did not have time to cover, indicating continuity of concern. The dedicated 2022 episode with Carissa Hessick provided the most systematic treatment, adding statistical detail—97–98% of convictions by guilty plea, zero federal trials in Rhode Island in 2021—and the right-to-vote analogy. The later treatment is more empirical and analogical; the earlier treatment is more focused on coercion and the trial penalty. No guest contradicts another; the differences are of emphasis and detail rather than substance.
What the sources do not cover
The excerpts do not state the specific text of the Sixth Amendment, nor do they name the case in which Justice Kennedy made his observation about plea bargaining being the criminal justice system. The sources do not provide the name of any bill or legislative proposal to reform plea bargaining or jury trial practice, nor do they describe the holding of any Supreme Court case on the constitutionality of plea bargains or sentencing threats. The excerpts also do not cover the historical origins of the jury trial beyond Zadek’s reference to the Magna Carta, nor do they discuss jury nullification or the size of juries.